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Gary Graham, et ux, et al v. Concord Construction , et al

Practice Area: Appeals

Outcome: Gary and Nancy Graham, PREVAILED

Description: In January 1995, during construction, severe rainstorms increased Toppenish Creek's flow. Graham Ranch is located upstream from the Toppenish Creek cofferdam and fish screen project. On January 31, Gary Graham, the owner of Graham Ranch, told Concord to remove the cofferdams. Concord refused. The water flows in Toppenish Creek breached the north bank of the creek, flooding Graham Ranch. Graham sued the Bureau. It settled its claim with the Bureau and dismissed the federal suit. But in doing so, Graham expressly reserved 'all rights which accrue to them under law to prosecute the civil claims' against Concord. Graham then sued Concord. The superior court granted Concord's motion for summary judgment, concluding that Concord was immune from liability because it had performed its work in accordance with the Bureau's control. Application of the collateral estoppel doctrine would work an injustice on Graham in this case. Graham made it clear during the federal action and settlement conference that it did not intend to resolve whatever state causes of action it may have had against Concord. The federal action did not therefore end in a final judgment on the merits and application of the doctrine would work an injustice on Graham. Nielson, 135 Wn.2d at 263; Butko, 99 Wn. App. at 545. Graham is not collaterally estopped from suing Concord. We reverse the trial court's summary judgment dismissal of Graham's claims and remand for trial on the merits.

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